1

Decision affirmed.

2

Reserve costs.

Mr Maidment SC with Mr A Clements of counsel instructed by Minter Ellison

1

The applicant is a 60 year old man who graduated from Monash University with the degrees of Bachelor of Medicine and Bachelor of Surgery in 1971 and subsequently became a registered medical practitioner in December of that year. His registration lapsed on 31 December 1987 and he has not been a registered medical practitioner since that time, save for a period of about 15 months in 1988/89.

2

This proceeding is brought pursuant to s 60 of the Medical Practice Act 1994 (the Act) whereby the applicant seeks review of a decision of the respondent made 6 December 2001 by which the respondent declined to grant the applicant registration ("the decision") on the grounds that :

(i)

the character of Mr McGoldrick is such that it would not be in the public interest to allow him to practise as a registered medical practitioner;

(ii)

Mr McGoldrick has been found guilty of indictable offences under both Victorian and Commonwealth legislation.

3

It should be noted, that Mr Maidment SC with Mr Clements, who appeared for the respondent, did not seek to persuade myself that the applicant's registration should be declined on the second ground found by the respondent but the matters concerned in that ground should be taken into account in the first ground, that is, matters concerning the applicant's character.

4

After being registered as a medical practitioner on 9 December 1971, the applicant practised for a number of years. On 25 July 1986, an inquiry was commenced pursuant to s 17 of the Medical Practitioners Act 1970 (the forerunner of the Act). However, the inquiry was never completed as a result of the applicant instituting proceedings in the Supreme Court of Victoria. Following remarks from Mr Justice Hampel, the former Board undertook not to proceed with the inquiry before 1 March 1987. The inquiry had not proceeded by 31 December 1987, at which time the applicant's registration had lapsed. As a result of the applicant's registration lapsing, the former Board lacked jurisdiction to proceed with the inquiry and consequently the same was never finalised.

5

On 2 February 1988, the applicant pleaded guilty in the Magistrates' Court to 31 offences of presenting payment for medical assignment forms which contained false and misleading particulars under the Health Insurance Commission Act 1973 (Cth). The applicant was fined $100 in relation to each charge (the 1988 offences).

6

In 1991, the Medical Board of Victoria conducted a hearing of an application by the applicant for restoration to the Medical Register of Victoria. However, the hearing was never completed as the applicant withdrew his application for restoration to the register.

7

On 19 November 1996, the applicant was convicted in the Magistrates' Court of Victoria of four charges relating to conduct that occurred on 14 October 1995 (the 1995 offences). Those charges were :

a

Taking or using the title of registered medical practitioner, contrary to s 62(1)(a) of the Medical Practice Act 1994.

b

Carrying out an act required to be carried out by a registered medical practitioner, contrary to s 62(1)(c) of the Medical Practice Act 1994.

c

Forge a prescription for a Schedule 8 poison, contrary to s 36A of the Drugs, Poisons and Controlled Substances Act 1981.

d

Utter a forged prescription for a Schedule 8 poison, contrary to s 36A of the Drugs, Poisons and Controlled Substances Act 1981.

8

In relation to offences described in sub-paragraphs (a) and (b) above, the applicant was fined $2000 for each offence, and in relation to the offences described in sub-paragraphs (c) and (d) above, the applicant was fined $500 for each offence.

9

The 1995 offences resulted from a "sting" operation conducted by the operators of the Melbourne Television Station Channel 9 with the help of an actress, Ms Montague.

10

Subsequently, the applicant admitted to treating another five persons who did not know he was an unregistered medical practitioner and to writing prescriptions in the name of Bentley, which was his wife's name.

11

Subsequently, before a hearing at VCAT which hearing was constituted by the then President Justice Kellam, Judge Wood and Member J Davis (the previous VCAT hearing), the applicant admitted to treating in excess of 50 patients without being registered to treat such patients.

12

During a hearing by the respondent on 13 September 2001 (which hearing resulted in the decision), the applicant, upon being questioned by a member of the respondent Board, Dr Freckleton, admitted to treating 200-300 patients who did not know he was an unregistered medical practitioner between 1993 and 1995.

13

In the period between 1993 and 1995, the applicant acted as a manager of several "Supercare" clinics which were owned by a number of family trusts relating to Mr McGoldrick and his family.

14

It would appear that the applicant was in fact in charge of the organisation and administration of the various Supercare clinics which were then scattered throughout metropolitan Melbourne. Apparently, the law permits non-medical persons, including disgraced former medical practitioners, to operate medical clinics so long as only registered medical practitioners perform medical work. While it is no excuse for Mr McGoldrick's conduct during the period between 1993 and 1995, if the law did not permit persons such as him, who at that time was a disgraced medical practitioner, to be in fact operating medical clinics, he would not have been able to illegally see between 200 and 300 patients and write prescriptions using another doctor's name. I do not mean this comment to be a criticism of the Government, but it appears to be an unfortunate gap in the law.

15

In any event, the applicant admitted in cross-examination at the hearing before me that he lied under oath in the previous VCAT proceeding, the proceeding before the Board and in numerous correspondence, when he stated that he saw upwards of 50 patients as an unregistered medical practitioner. He admitted that he was being less than frank in using the expression "upwards of 50" knowing full well that he had seen between 200 and 300 patients in that time.

16

On 5 February 1997, the applicant lodged with the respondent an application for registration as a medical practitioner pursuant to the Act. That application was rejected and the applicant applied to the former Administrative Appeals Tribunal for review of that decision. As a result, the former VCAT proceedings were conducted. On 15 September 1998, an order was made in the former VCAT proceedings to set aside the respondent's 1997 decision and it was determined that the applicant be granted registration subject to a number of conditions.

17

On 26 November 1998, pursuant to the VCAT orders, the respondent registered the applicant as a medical practitioner. It should be noted that the respondent was registered as a medical practitioner, pursuant to the VCAT orders, for approximately 15 months. However, as a result of matters that have little relevance to this proceeding, he only worked for approximately 10 days with supervision in that period.

18

The respondent appealed against the decision in the former VCAT proceedings and by a judgment on 17 December 1999, the Court of Appeal allowed the appeal, set aside the VCAT decision and remitted the matter to VCAT for further hearing and determination according to law without further evidence. The applicant's name was then taken off the register of medical practitioners.

19

On 31 March 2000, the matter was further heard by VCAT and, on 7 July 2000, VCAT affirmed the respondent's decision of 16 October 1997 to reject the applicant's application for registration as a medical practitioner on the grounds that it would not be in the public interest to allow the applicant to practise as a medical practitioner.

20

The genus of the applicant's current application before me, is an application by him to the respondent for registration as a medical practitioner pursuant to the Act, dated 12 October 2000.

21

After receiving numerous submissions from the applicant, on 6 December 2001, the respondent made the decision which determined the applicant's application and refused to grant him registration.

22

It should be noted that in October 1998, the applicant was disqualified pursuant to s 103 of the Liquor Control Act 1987 from holding a liquor licence, being a director or partner of any company holding a liquor licence or from holding a beneficial interest in the shares of any company holding a liquor licence and/or in any way being concerned with the management of licensed premises. This disqualification apparently arose as a result of the applicant when he was managing a hotel, serving people after hours and serving minors.

23

The respondent in this proceeding, through Mr Maidment, relied upon s 7(2)(a) of the Act for refusing to register the applicant as a medical practitioner. Section 7(2)(a) reads as follows :

(2) The Board may refuse to grant registration to an applicant on any one or more of the following grounds -

(a) that the character of the applicant is such that it would not be in the public interest to allow the applicant to practise as a registered medical practitioner; ....

24

At the commencement of this hearing, the applicant submitted that I should disregard his previous convictions in considering matters pursuant to s 7(2)(a) because it was res judicata as it had already been decided in the previous VCAT proceeding and the respondent had said that they were not relying upon the same. While the applicant's convictions were considered in the previous VCAT proceeding, in my view that does not make the issue res judicata. At p 20 of the VCAT decision of 15 September 1998, the Tribunal made it clear that the convictions "themselves" were not sufficient to enable them, "to say that it is not in the public interest to allow McGoldrick to practise by reason of them". This does not preclude me from considering the applicant's previous convictions, when considering his character. When considering character, it is important to look at the whole matrix of the facts, including the applicant's previous behaviour.

25

In relation to the submission that the respondent informed the applicant that it would not be relying upon his previous convictions, such a submission is not borne out by the evidence. In a letter dated 9 May 2002 from the respondent's solicitor, Minter Ellison, after referring to the 1988 and 1995 offences, it was stated :

Accordingly, the Board will submit at the appeal that this issue goes to consideration of your character.

26

Thus it seems quite clear to me that while the Board is not relying on the convictions by themselves to exclude the applicant from practising, the respondent is in fact relying upon the convictions and is entitled to do so in relation to whether the ground in s 7(2)(a) of the Act is made out.

27

In an application for registration, the applicant bears the onus of proving on the balance of probabilities at the time of the hearing that he is of good character. In the previous proceedings, on 15 September 1998 (unreported), the Tribunal unequivocally concluded that the applicant had the onus of proof. At p 12 it was stated :

Counsel for McGoldrick submits that the onus of proof rests on the respondent to prove why McGoldrick should not be registered as a medical practitioner. On the other hand the respondent submits that McGoldrick carries the onus. We have considered this matter and have concluded that there is an onus on McGoldrick to establish his 'prima facie' entitlement to registration for the purposes of Section 7(1) of the Act. We do not consider that the Board carries any onus or burden of proof. However, in our view, the Board is required to examine the application for restoration with caution and care. Before refusing registration it should ensure that there is evidence which is sufficient for it to achieve a high level of satisfaction that any grounds under Section 7(2) of the Act are properly established, consistent with its obligation to adopt procedural fairness, and with the purposes of the Medical Practice Act set out in Section 1(a) of the Act.

28

In Medical Practice Board of Victoria v McGoldrick [1999] VSCA 215; (1999) 15 VAR 462 at 467 Buchanan JA, commented on the above passage from VCAT and stated:

Unless facts are established which constitute a ground or grounds under s 7(2), the Tribunal cannot exercise its power to refuse an application for registration. In the present case, however, the facts are not in dispute. The only questions were whether the Tribunal considers that any of the omitted facts fulfil the description of one or more of the grounds set out in s 7(2) and, if they did, whether on that account the application for registration should be refused. In forming its opinion on those matters, the Tribunal put aside, in my view, correctly, the question of the onus of proof.

29

In this case, there is little dispute between the parties as to the relevant facts, as there was in the previous VCAT proceeding and, as such, I am able to examine those facts and to see if the ground referred to in s 7(2)(a) is made out and am able to put aside the question of the onus of proof.

30

The authorities make it clear that I must be satisfied that the applicant is of "good character". I do not have to be satisfied that he is of "bad character". In Ex parte Tziniolis; Re medical Practitioners Act (1967) 1 NSWLR 357 at 358 Walsh JA stated :

The question before the Court is not whether it is satisfied affirmatively that the applicant is of bad character. The ultimate question for the Court is whether it is satisfied that he is of good character_._

31

It is clear that good character is not merely a reflection of a person's reputation but relates to the intrinsic qualities of the person and his moral standards and qualities. The requirement of good character is a 'test of ethical fitness' for the profession and requires 'enduring moral qualities' (see in Re Davis [1947] HCA 53; (1947) 75 CLR 409 at 420 and 426).

32

In McBride v Walton (unreported NSW Court of Appeal 15 July 1994) Handley JA at p 24 looked at "good character" as being both a test of ethical fitness and enduring moral qualities. He stated :

The ground of complaint is that the Doctor 'is not of good character'. Parliament has made a legislative judgment that persons who were not of good character should not be registered. Medicine was to be an honourable s well as a skilled and learned profession.

The meaning of good character in the old Act was considered in Ex parte Tziniolis Re Medical Practitioners Act (1966) 67 SR (NSW) 448. The Medical Board had declined to register the applicant because it as not satisfied that he was of good character. He appealed to this Court. The conduct relied upon had not occurred in or in connection with the practice of medicine. It included obtaining an immigrant visa by bribery, a willingness to knowingly encourage breaches of the rules binding on foreign doctors, the writing of a malicious, scandalous and lying letter to the father in Greece of a Greek/Australian to cause the latter trouble and embarrassment, and the sending of a letter to his mother in law in Greece which was grossly indecent, vicious and cruel. The Court unanimously dismissed the appeal.

Wallace P said at 460 that conduct may show a defect of character incompatible with membership of a self respecting profession. Walsh JA said at 451 and 452 that in deciding whether the applicant was of bad character : "... the Court is required to consider matters affecting the moral standards, attitudes and qualities of the applicant and not merely ... his general reputation ... we are entitled to enquire into what may be described as personal misconduct, as distinct from professional misconduct, in determining ... whether or not the applicant is a man of good character, whilst recognising that there may be some kinds of conduct deserving of disapproval which have little or no bearing on the question whether ... an applicant for registration as a medical practitioner is a person of good character".

Holmes JA at 475 rejected the argument that the test of good character referred to the applicant's reputation and not to his disposition. He said that "good" was used in the sense of moral strength and referred to the quality of a person which was to be judged by his behaviour and the associated mental and emotional conditions. He said: "A man's conduct in respects known only to his intimates can evidence his character".

Accordingly I would reject the arguments for the appellant to the extent to which they invited the Court to qualify the plain words of s 28(1)(f) or to substitute other words for the statutory language. In particular I reject the submission that lack of good character can only be established by conduct which affected the Doctor's fitness to practise as a registered medical practitioner. In Re Davis [1947] HCA 53; (1947) 75 CLR 409 at 420 Dixon J in an analogous context referred to the requirement of good character as "the test of ethical fitness" which requires "enduring moral qualities".

33

It is also clear that a propensity to tell untruths and mislead or give false evidence is something that should be taken into account in assessing good character. In other words, an essential quality of good character is honesty (see McBride v Walton supra at p 53). In _Medical Practitioners Board v McGoldrick (_supra) at para 24 Buchanan JA placed considerable weight in relation to character on giving false evidence. His Honour stated :

The fact that the respondent gave false evidence is a grave reflection upon his character. It was dishonest and disclosed a readiness to break the law when it suited him. Medical practitioners occupy a position of considerable trust, and it is in the public interest that they should merit that trust. Accordingly, it is to be expected that medical practitioners will be scrupulously honest in their dealings with patients, with other doctors and those in related professions such as nurses, radiologists and technicians and support staff and with the government departments with which they deal in the course of their practice. In my opinion, the Tribunal was bound to have regard to the fresh instances of the respondent's dishonesty constituted by his false testimony.

34

It is clear that VCAT in the previous proceedings in its decision on 7 July 2000 (after the Court of Appeal) found that the applicant's character was such that it would not be in the public interest to allow him to be registered as a medical practitioner pursuant to s 7(2)(a). At paragraph 13 VCAT stated :

The Court of Appeal has underlined the significance of the respondent having given false evidence in an effort to deny or minimize his earlier conduct, and stated that the Tribunal is bound to have regard to the fresh evidence of dishonesty disclosed in the course of the application to review, in addition to the matters which were before the Medical Practitioners Board. We have given consideration to the matters remitted to us by the Court of Appeal. Although, as we previously stated, the matters which were relied upon by the Medical Practitioners Board as being matters which established grounds to refuse registration did not individually or in totality justify a refuse to re-register McGoldrick, we have concluded that the evidence which we accepted as being not frankly given or as being dishonestly given, when viewed in the totality, does, as the Court of Appeals has pointed out, rase serious questions as to whether the character of the applicant is such that it would not in the public interest to allow him to practise as a registered medical practitioner pursuant to s 7(2)(a) of the Act.

35

In summary, the matters of the applicant's conduct which concerned the Tribunal in the last VCAT proceedings were :

•

The 1988 offences

•

The 1995 offences

•

The applicant treating five other people when he was unregistered

•

The applicant's disqualification pursuant to the Liquor Control Act 1987

•

Giving false evidence before the Tribunal

On the material before me and on the findings in the last VCAT proceeding, it is clear that the applicant's character was such that it was not in the public interest to allow him to practise as a registered medical practitioner. The question now is at the time of the hearing, has he recovered good character?

36

The applicant submitted that he has now recovered the good character that he had in the past.

37

Since VCAT made its final decision in the previous proceedings, it has now emerged that the applicant treated 200 to 300 patients rather than the numbers he led the Tribunal to believe he had treated.

38

It is clear to me, that the applicant made every endeavour to conceal from both the respondent and VCAT in the previous proceedings that he had illegally treated 200 to 300 patients in the period 1993 to 1995.

39

It was only after vigorous questioning by Board member Dr Freckleton at the Board hearing of 13 September 2001 that the applicant eventually admitted that he had treated 200 to 300 patients. In my view, if it had not been for this vigorous questioning, the applicant would not have made the admission.

40

The applicant's lack of contrition in relation to this matter was demonstrated when he was cross-examining Mr Smith, the deputy chief executive of the respondent. The applicant referred to para 3 of his letter of 14 March 1997 to the respondent which read as follows :

In my capacity as a legally qualified Medical Practitioner, I have and continue to advise and treat patients and to assist colleagues with advice and second clinical opinions on a daily basis. I have informed you of this fact and you agreed, in the presence of my Solicitor, that I was legally entitled and qualified to do this, at no time have I claimed to be a currently registered Medical Practitioner although I have never been de-registered.

41

The applicant attempted by his questioning to have Mr Smith acknowledge that this in fact meant that he had notified the Board of his illegal treatment of 200 to 300 patients. Clearly, this paragraph does not give that impression. To the applicant's credit, in cross-examination, he eventually admitted as such.

42

In my view, that admission by the applicant was somewhat belated. As late as the second day of the hearing before me, the applicant adopted his witness statement which statement tends to give the impression that he had been completely upfront with the Board. At p 3 of that statement, the applicant stated :

The evidence is, despite their claims, that the Board was at all relevant times aware of the extent of the applicant's involvement in the treatment of patients, while unregistered and the transient mental health reasons, which led to his totally inappropriate behaviour involved in the treatment of patients while the applicant was unregistered. ...

The Board at the previous VCAT hearing exhibited in this statement, and therefore it and the Tribunal were aware of the full extent of the applicant's inappropriate and illegal treatment of patients, when VCAT ruled on the treatment of patient issues in 1998.

43

This statement is patently untrue as the applicant admitted. At p 171 of the transcript relating to the cross-examination of the applicant in the previous VCAT proceedings, the applicant was asked : "You treated people during that period of time (1993-1995), at the clinics, other than the ones we have heard about, on the basis that you were, as far as they were concerned, a registered medical practitioner?". To that question the applicant answered "Not to my recollection". The applicant admitted yesterday in cross-examination that that was a lie.

44

The transcript also shows that the applicant was asked several other questions about treating patients, to which he gave replies in the nature of, "It's possible", "I don't think so", and "I can't recall". The applicant again admitted in cross-examination before me he was lying.

45

In spite of numerous correspondence passing between the applicant and the respondent and witness statements being prepared, the second day of the hearing before me is the first time that the applicant admitted that he had lied during the previous VCAT proceeding.

46

The applicant's situation is made worse by the fact that he complained to the chief executive officer of the respondent, to the Ethics Committee of the Victorian Bar (re Dr Freckleton), and to Minter Ellison, the respondent's solicitor, to the effect that the respondent was unfair to him and/or "dishonest" in asserting that the extent of his treatment of patients while unregistered, 'emerged for the first time' in the hearing before the respondent on 13 September 2001. These complaints were clearly false, and, in my view, the applicant knew they were false and hoped by making such false complaints to strengthen his case. However, in my view, such matters go to show that the applicant is willing to go to whatever lengths it is necessary, and carry out whatever deception is necessary, in order to achieve his goal of re-registration.

47

The applicant stated in his final submissions that his previous conduct was wrong and outrageous but that over the passing of time, and because of psychiatric problems in the past which no longer exist, he should nonetheless today be found to be of good character and that it is in the public interest that he should be re-registered. In order to support this submission, he relied upon the evidence of Carla Lechner (psychologist). In her first report dated 15 April 2002, Ms Lechner stated :

His (the applicant) history would suggest that Mr McGoldrick has had immense drive and energy, with a capacity to work on a number of projects at the one time. It is probable that he may well have had periods of hypomania. This, in addition to periods of depression over the past two decades, is indicative of a possible cyclothymic disorder. In the past this has been unrecognised and untreated, however it is interesting to note that Mr McGoldrick's lapses of judgement and involvement in behaviour transgressing the Medical Board's code of practice, have typically occurred in conjunction with his mood disorder. Hence repeated incidents of 'misconduct' which could be interpreted as a character flaw and inability to profit from experience, may alternatively be viewed as an underlying mood disorder which leads to periods of instability when under stress. Mr McGoldrick has developed considerable insight as to this process and has sought professional assistance when indicated. He has also taken anti-depressants when suffering symptoms of depression.

He also appears to have matured and gained insight as to the nature of his mood disorder, and hence his need to seek support when under stress. He expressed remorse for the behaviours associated with his de-registration, recognising that his behaviour was inappropriate.

48

In her latest report of 28 November 2004, Ms Lechner states :

It is some two and a half years since my last assessment of Mr McGoldrick. Since that time he has established himself in the area of property development, his family life has settled considerably, he has suffered the loss of his mother and charges that were pending in 2002 have been withdrawn. He presents as more mature, circumspect and settled within himself. He does not present with symptoms consistent with depression, this being confirmed by his score on the Beck Depression Inventory, which was in the 'minimal', that is, sub-clinical range.

Mr McGoldrick demonstrates insight about his past problems, his mood disorder and the concerns that the Medical Board have previously expressed. He described his earlier behaviour as 'outrageous ... out-of-control'. .....

Mr McGoldrick's previous behaviour was a function of his mood disorder and personality style, rather than evidence of a personality disorder. It is also my opinion that he does not fulfil the criteria of an Anti-Social Personality Disorder as set out in the DSM-IV.

49

It is noteworthy that, in cross-examination, Ms Lechner confirmed that the applicant had concealed from the Board the extent of his treatment of patients while unregistered. To some extent, this last statement was modified by re-examination, however, it does appear to me that the applicant was intent on concealing from the Board the extent to which he treated patients in the period between 1993 and 1995.

50

It was not submitted by Mr Maidment that the applicant does have a personality disorder. What was submitted is that his character is such that it would not be in the public interest to allow the applicant to practise as a medical practitioner. Ms Lechner did not attempt to explain what caused the applicant to try and deceive the respondent and initially this Tribunal in recent times. Further, Ms Lechner did not explain what caused the applicant to behave in the manner he did which brought about the 1988 convictions.

51

I also note that from Ms Lechner's notes which were taken on 26 November 2004, the applicant appears to have admitted to her that he had concealed his illegal practices during the 1993-1995 period from the Board.

52

The applicant also relied on the evidence of Dr John Lanyon, who gave evidence before me. Dr Lanyon said that he was a general practitioner experienced in psychiatry and a friend of the applicant for many years. He said that the applicant's problems in 1993 to 1995 were caused by his father dying, separation from his wife, and major financial stresses causing depression and hypomania. Dr Lanyon said that he has treated the applicant on several occasions. However, he said that he had no notes in relation to any of those occasions, they had probably been destroyed, although he did not know whether in fact he had made any. He also said that he may have had some notes in relation to the last twelve months but he did not have them with him and he did not know whether notes had ever been made. By and large, Dr Lanyon's evidence was most unsatisfactory as he did not appear to be able to remember any detail of the consultations that took place. However, I note that Dr Lanyon in spite of trying to explain the applicant's conduct in the period from 1993 to 1995 was unable to explain why the applicant behaved the way he did in order to bring about the 1988 convictions.

53

The applicant also relied on the fact that he was re-registered to practise in between the time of the first VCAT hearing in the previous proceedings and the Court of Appeal decision. He states that such practice took place without incident and therefore I should take that into account in considering whether or not he has reformed. However, I note that in spite of the fact that the applicant was re-registered for a period of 15 months, he only practised for a total of ten days which time was closely supervised. Under those circumstances, the fact that he was able to practise without incident during this period means very little and I will disregard the same.

54

The applicant further stated that he was now sixty years of age, and unless he is able to resume practice in the near future, he would lose the knowledge and skill that he has acquired through his life time. This statement does not assist me in relating the criteria referred to in s 7(2)(a) to the facts at hand.

55

The law makes it quite clear that it is possible over a period of time for a person to recover character but such recovery will depend on the facts. In Tziniolis (supra) Walsh J at p 366 said as follows :

Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man. The position is somewhat similar to that which exists when application is made by a barrister or a solicitor who has been found guilty of serious misconduct exhibiting a lack of proper standards, seeking reinstatement on the ground that, after a lapse of time, he has become a fit and proper person to be a member of a profession which requires qualities and standards in which he is known to have been deficient. In such cases, it has been frequently said that a heavy onus lies on the applicant. See Ex parte Clyne; Re Bar Association of NSW [1962] NSWR 709; [1962] SR (NSW) 436, at p 441, and cases there cited.

56

In A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; [2004] 204 ALR 8, the High Court dealt with a case concerning professional misconduct rather than the question of character, but the High Court emphasized the importance of the professional's duty of candour in dealing with the body regulating the profession and held that the Court of Appeal was right to treat very seriously a solicitor's failure to disclose to the law society various convictions. At p 19 it was stated :

Frankness required the disclosure of the convictions and sentence, even if he regarded them as unjust, and hoped (or even expected) that they would be overturned on appeal. Furthermore, the appellant's duty of candour in his dealing with the law society was a professional duty, and its breach was professional misconduct. It was proper that it should be declared to be such.

57

Taking the matters into account which were referred to in Tziniolis and A Solicitor, I have formed the view that the applicant only became frank with the Board when he was forced to by the questions which were asked of him at the time. This can be shown from the line of questioning at pp 73 and 74 of the transcript :

Dr Freckleton: One of the issues that we have to think about is what has happened since 1995, all right, because we've talked about the things that happened in 93 and 95. Before we get to that, you obviously indicated to VCAT that there were six occasions on which you had treated patients when you should not have done.

Mr McGoldrick: That was what the Board put to me on the (indistinct) occasions, yes.

Dr Freckleton: All right. You said to us in submissions that there were more than 50.

Mr McGoldrick: yes, I said that to the Board, to VCAT as well.

Dr Freckleton: Did you?

Mr McGoldrick: Yes. Somewhere in there it said this is not the only time that you treated patients. I said no, that's correct.

Dr Freckleton: Did you tell them it was more than 50?

Mr McGoldrick: They didn't ask me that. They said 'Have you treated other patients?' I said 'Yes'.

Dr Freckleton: You said to us in submissions it was more than 50 and you have said in answer to questions today there was more than 200.

Mr McGoldrick: Well, I'm guessing.

Dr Freckleton: Could it have been more than 300? Could it have been more than 300?

Mr McGoldrick: I don't think so. It would be in that range, the 200, 300 range.

Dr Freckleton: Two or three hundred.

Mr McGoldrick: That's not counting the ones that, you know, friends that saw me, that knew that I wasn't registered.

58

The situation is best summed up at para 45 of the Board's decision where it is stated :

Repeatedly, before the Board in 2001, he (the applicant) was evasive and contradictory, shifting ground to accommodate what he appeared to think the Board wanted to hear. He consistently minimised and rationalised his infractions, appearing to have little by way of ethical awareness of the seriousness of his behaviour. He was loathe to admit the extent of his impropriety, little bit by little bit grudgingly conceding the extent of his illicit practice and the fact that doctors, nurses and receptionists were aware of his conduct. He was concerned to impress upon the Board that his practice as a doctor was of proper standard and seemed to consider it to his credit that former patients and even staff wanted to continue to avail themselves of his services.

59

I agree entirely with the comments made there by the Board.

60

It is also clear that it was only part-way through the hearing before me, during the applicant's cross-examination, that he admitted that he had previously lied to both VCAT in the previous proceedings and to the Board.

61

In my view, this type of conduct, although put by the applicant as something that he is now admitting, shows that the applicant does not really understand his ethical responsibilities. It was not until the applicant was "pushed" and asked very precise questions that he was willing to tell the truth. Put another way, the applicant has shown a serious lack of frankness and candour to the point where I cannot conclude that he is now of good character (see Re A Solicitor and Tziniolis cases).

62

I accept that the applicant does not have a personality disorder. However, I do not believe that the applicant's past conduct can be attributed entirely to the matters described by Ms Lechner and Dr Lanyon. I put it to the applicant during address, that perhaps his conduct was motivated by greed. The applicant denied this assertion. However, it seems to me that perhaps that is a more likely explanation for the applicant's conduct than those proffered by his expert witnesses.

63

In any event, I do not believe that I need to find the motivation or cause for the applicant's conduct. It is sufficient for me to say that, at the time of the hearing before me, the applicant only displayed true candour when he was "pushed". That is not the type of character that shows it would be in the public interest for the applicant to be re-registered as a medical practitioner.

64

In assessing character, I am obliged to have regard to the protection of the public and the public interest. That extends to ensuring both the reality and the perception that the medical profession is comprised of persons who are honest and trustworthy, and in whom the public may have confidence (see Domburg v Nurses Board of Victoria (2000) VSC 369 at paras 39 and 42 per Ashley J). Upon what I observed of the applicant's conduct, if the applicant was to be re-registered, I would have considerable doubts that he would act in the profession in an honest and trustworthy manner that is required in such an important profession as the medical profession.

65

As a result of matters referred to above, I conclude that the applicant has not recovered good character. The traits he has displayed as recently as during the hearing of the proceeding, demonstrates that at the present time "the character of the applicant is such that it would not be in the public interest to allow the applicant to practise as a registered medical practitioner". I will thus affirm the decision of the respondent not to register the applicant as a medical practitioner.